1
EXHIBIT 4.6
NATIONAL CITY CAPITAL TRUST I
$500,000,000
RESET ASSET CAPITAL SECURITIES
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED
BY
NATIONAL CITY CORPORATION
June 6, 1997
National City Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-3484
Ladies and Gentlemen:
National City Capital Trust I, a Delaware statutory trust (the
"Trust") proposes to issue and sell to UBS Securities LLC ("UBS"), upon the
terms set forth in a purchase agreement dated May 29, 1997, 500,000 of the
Trust's Reset Asset Capital Securities, liquidation amount $1,000 per Capital
Security (the "Liquidation Amount") (including any securities issued in exchange
therefor, the "Capital Securities"), the payment of which will be guaranteed by
National City Corporation, a Delaware corporation (the "Company") to the extent
set forth in a guarantee agreement dated of even date herewith (the
"Guarantee"). The proceeds of the sale by the Trust of the Capital Securities
and its Common Securities, liquidation amount $1,000 per Common Security (the
"Common Securities"), are to be invested in the Junior Subordinated Debt
Securities of the Company having an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Securities and the Common Securities
(including any securities issued in exchange therefor, the "Junior Subordinated
Debt Securities"). The Junior Subordinated Debt Securities will be distributed
to holders of the Capital Securities in certain circumstances (each, a
"Distribution Event").
The Junior Subordinated Debt Securities will bear interest at
the applicable rate (the "Applicable Rate").
2
2
Holders of the Capital Securities will be entitled to receive cumulative cash
distributions equal to the Applicable Rate applied to the Liquidation Amount per
Capital Security, accruing from the original date of issuance of the Capital
Securities (the "Issue Date"). Prior to June 1, 1999 (or if such date is not a
business day, the succeeding business day) (the "Rate Reset Date"), the
Applicable Rate will be 6.75% per annum. The Applicable Rate on and after the
Rate Reset Date will be equal to the rate per annum resulting on the Rate Reset
Pricing Date (as defined below) from the implementation of auction procedures
(the "Auction Procedures") pursuant to which existing holders of beneficial
ownership interests in the Capital Securities (or, if a Distribution Event shall
have occurred, the Junior Subordinated Debt Securities) ("Existing Holders") and
other persons may determine to hold or offer to sell or, based on rates offered
to them, offer to purchase Capital Securities (or, if a Distribution Event shall
have occurred, Junior Subordinated Debt Securities). The implementation of the
Auction Procedures will occur on the third business day preceding the Rate Reset
Date (the "Rate Reset Pricing Date") and will hereinafter be referred to as the
"Rate Reset Auction."
As used in this Agreement, the terms "rates" and "rates per
annum" shall include rates and rates per annum expressed as or determined by
reference to a spread to a specified United States Treasury security.
This is to confirm the agreement between UBS and the Company
for UBS to act as exclusive remarketing agent (the "Remarketing Agent") in
connection with the Rate Reset Auction.
1. DEFINITIONS. As used in this Agreement, the following
capitalized defined terms shall have the following meanings (terms defined in
the singular shall include the plural):
"AUCTION AGENT" means The Bank of New York, as auction agent
under the Auction Agency Agreement, or its successor or assign as such auction
agent.
"BID" means an Order (i) indicating the Liquidation Amount of
outstanding Capital Securities (or, if a Distribution Event shall have occurred,
the principal amount of outstanding Junior Subordinated Debt Securities), if
any, that an Existing Holder desires to continue to hold if the Applicable Rate
on and after the Rate Reset Date is not less than the rate per annum specified
by such Existing Holder or (ii) indicating the Liquidation Amount of outstanding
Capital Securities (or, if a Distribution Event shall have occurred, the
principal amount of outstanding
3
3
Junior Subordinated Debt Securities), if any, that a Potential Holder desires to
purchase if the Applicable Rate on and after the Rate Reset Date is not less
than the rate per annum specified by such Potential Holder.
"BIDDER" means an Existing Holder or a Potential Holder which
submits an Order.
"BUSINESS DAY" means any day other than a Saturday or a
Sunday, or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed, or a day on
which the corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
"DEBENTURE TRUSTEE" means The Bank of New York, as trustee
under the Indenture, or its successor or assign as such trustee.
"HOLD ORDER" means an Order indicating the Liquidation Amount
of outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities), if any, that an Existing Holder desires to continue to hold without
regard to the Applicable Rate on and after the Rate Reset Date.
"INDENTURE" means the indenture, as supplemented from time to
time, between the Company and the Debenture Trustee, under which the Junior
Subordinated Debt Securities are to be issued as a separate series.
"MAXIMUM APPLICABLE RATE" means the Treasury Rate (as defined
in Section 2.02 of the Indenture) on the Rate Reset Pricing Date plus 5.0% per
annum.
"ORDER" means any Hold Order, Bid or Sell Order communicated
or deemed communicated to the Remarketing Agent in writing on a form provided by
the Company and approved by the Remarketing Agent for the purpose.
"PERSON" means any individual, corporation, association,
company, joint-stock company, business trust, partnership, joint venture, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"POTENTIAL HOLDER" means an Existing Holder or other Person
who makes a Bid to purchase Capital Securities (or, if a Distribution Event
shall have occurred, Junior Subordinated Debt Securities) if the Applicable Rate
on and after the Rate Reset Date is not less than the rate per annum specified
by such Existing Holder or other Person.
4
4
"PROPERTY TRUSTEE" shall mean The Bank of New York, as
property trustee for the Amended and Restated Declaration of Trust relating to
the Trust among the Company, as depositor, The Bank of New York, as property
trustee, The Bank of New York (Delaware), as Delaware trustee, and the
individuals named as administrative trustees therein, or its successor or assign
as such trustee.
"SELL ORDER" means an Order indicating the Liquidation Amount
of outstanding Capital Securities (or, if a Distribution Event shall have
occurred, the principal amount of outstanding Junior Subordinated Debt
Securities), if any, that an Existing Holder offers to sell without regard to
the Applicable Rate on and after the Rate Reset Date, and any deemed Sell Order
pursuant to Section 2(c)(ii) hereof.
"SUBMISSION DATE" means the business day five business days
prior to the Rate Reset Date.
"SUBMISSION DEADLINE" means 1:00 p.m. on the Submission Date.
"SUBMITTED BID" means, after the Submission Deadline, all Bids
submitted by Existing Holders or Potential Holders through the Remarketing Agent
to the Auction Agent.
"SUBMITTED SELL ORDER" means, after the Submission Deadline,
all Sell Orders submitted or deemed submitted by Existing Holders through the
Remarketing Agent to the Auction Agent.
"SUFFICIENT CLEARING BIDS" means an amount of Submitted Bids
by Potential Holders such that the Liquidation Amount of outstanding Capital
Securities (or, if a Distribution Event shall have occurred, the principal
amount of outstanding Junior Subordinated Debt Securities) that is the subject
of such Submitted Bids with rates not higher than the Maximum Applicable Rate
equals or exceeds the Liquidation Amount of outstanding Capital Securities (or,
if a Distribution Event shall have occurred, the principal amount of outstanding
Junior Subordinated Debt Securities) that is the subject of Submitted Sell
Orders (including the Liquidation Amount of Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of Junior
Subordinated Debt Securities) as to which Sell Orders are deemed to have been
submitted and the Liquidation Amount of Capital Securities (or, if a
Distribution Event shall have occurred, the principal amount of Junior
Subordinated Debt Securities) subject to Bids by
5
5
Existing Holders specifying rates higher than the Maximum Applicable Rate).
2. APPOINTMENT OF REMARKETING AGENT; OBLIGATIONS
OF COMPANY AND REMARKETING AGENT. (a) Subject to the terms and conditions herein
contained, the Company hereby appoints UBS, and UBS hereby accepts such
appointment, as the exclusive Remarketing Agent in connection with the Rate
Reset Auction.
(b) The Company hereby agrees that it will provide, or cause
to be provided, to the Remarketing Agent a list of the registered holders of the
Capital Securities (or, if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities), and, if the Capital Securities (or, if a
Distribution Event shall have occurred, the Junior Subordinated Debt Securities)
are represented by global certificates ("Global Certificates") registered to the
Depository Trust Company ("DTC") or its nominee, the participants in DTC (the
"Participants") that hold interests in the Capital Securities (or, if a
Distribution Event shall have occurred, the Junior Subordinated Debt
Securities), by the tenth business day prior to the Rate Reset Date, and will
update such list from time to time as requested by the Remarketing Agent. The
Remarketing Agent will be entitled to rely on the information furnished by the
Company and any Participant.
(c) The Remarketing Agent, on the condition that it has
received any Offering Materials requested pursuant to Section 3 hereof and any
other document requested pursuant to Section 3(b) hereof, hereby agrees that it
will:
(i) exercise its best efforts to solicit Hold Orders from
Existing Holders and Bids from Existing Holders and Potential Holders
so that there are Sufficient Clearing Bids;
(ii) deem a Sell Order to have been submitted in the amount of
the difference by which an Existing Holder's Order or Orders, if any,
submitted to it prior to the Submission Deadline account for less than
the entire outstanding Liquidation Amount of Capital Securities (or, if
a Distribution Event shall have occurred, the entire outstanding
principal amount of Junior Subordinated Debt Securities) held by such
Existing Holder;
(iii) submit all Orders submitted to it or deemed submitted to
it pursuant to clause (ii) above prior to the Submission Deadline to
the Auction Agent prior to 10:00 a.m. on the business day following the
Submission Date, it being understood that the Remarketing Agent
6
6
will be under no obligation to submit to the Auction Agent (A) any
communications submitted to it other than on the form provided by the
Company for the purpose of indicating Orders, (B) any Orders submitted
to it other than in a Liquidation Amount of Capital Securities (or, if
a Distribution Event shall have occurred, a principal amount of Junior
Subordinated Debt Securities) of $100,000 or an integral multiple of
$100,000 in excess thereof, (C) any Bid from any Potential Holder which
specifies more than one rate or Liquidation Amount of Capital
Securities (or, if a Distribution Event shall have occurred, principal
amount of Junior Subordinated Debt Securities) or (D) any Orders
submitted to it after the Submission Deadline;
(iv) submit the Maximum Applicable Rate in writing
to the Auction Agent prior to 10:00 a.m. on the
business day following the Submission Date;
(v) on the Rate Reset Pricing Date, advise each Existing
Holder or Potential Holder that submitted an Order of the Applicable
Rate which will apply on and after the Rate Reset Date, and, if such
Order was a Bid, whether such Bid was accepted or rejected, and whether
in whole or in part;
(vi) on the Rate Reset Pricing Date, confirm purchases and
sales with each Bidder purchasing or selling Capital Securities (or, if
a Distribution Event shall have occurred, Junior Subordinated Debt
Securities) as a result of the Rate Reset Auction;
(vii) if the Capital Securities (or, if a Distribution Event
shall have occurred, the Junior Subordinated Debt Securities) are
represented by Global Certificates, advise DTC on the Rate Reset
Pricing Date as to which of its Participants' book-entry accounts for
the Capital Securities (or, if a Distribution Event shall have
occurred, the Junior Subordinated Debt Securities) should be adjusted
(and in what amount) to reflect Bids, Hold Orders and/or Sell Orders
which were accepted in the Rate Reset Auction;
(viii) if any of the Capital Securities (or, if a Distribution
Event shall have occurred, the Junior Subordinated Debt Securities) are
represented by individual certificates, advise The Bank of New York (or
any successor or assign), as Registrar, at an address and to a contact
person to be provided by the Company, on the Rate Reset Pricing Date as
to which of the registered holders of Capital Securities (or, if a
Distribution Event shall have occurred, Junior
7
7
Subordinated Debt Securities) in individual certificated form submitted
(or were deemed to submit) Bids, Hold Orders and/or Sell Orders which
were accepted in the Rate Reset Auction and in what amounts; and
(ix) purchase on the Rate Reset Date the aggregate Liquidation
Amount of Capital Securities (or, if a Distribution Event shall have
occurred, the aggregate principal amount of Junior Subordinated Debt
Securities) purchased by Potential Holders whose Bids were accepted in
the Rate Reset Auction.
3. FURNISHING OF OFFERING MATERIALS. (a) If the Remarketing
Agent determines that it is necessary or desirable to use any offering materials
in connection with the performance of its obligations enumerated in Section 2,
the Remarketing Agent will so notify the Company, and the Remarketing Agent will
not be obligated to perform those obligations until it has been provided (and
the Company will use its best efforts to provide) such offering materials which
are satisfactory to the Remarketing Agent and its outside counsel. If, based on
the advice of its outside counsel, the Remarketing Agent concludes that it
cannot perform its obligations enumerated in Section 2 without all or any
portion of the outstanding Capital Securities (together with the Guarantee) (or,
if a Distribution Event shall have occurred, the outstanding Junior Subordinated
Debt Securities) being registered under the Securities Act of 1933, as amended
(the "Act"), the Company agrees to file, and, if applicable, agrees to cause the
Trust to file a registration statement relating to any such Capital Securities
(together with the Guarantee) (or, if a Distribution Event shall have occurred,
Junior Subordinated Debt Securities) with the Securities and Exchange Commission
(the "Commission"). Each prospectus included in such registration statement, or
amendment thereof, before it becomes effective under the Act and any prospectus
which may be filed by the Company with the Commission pursuant to Rule 424(a)
(or any successor applicable rule) of the rules and regulations under the Act
(the "Rules and Regulations") in connection with such registration statement is
hereinafter referred to as a "Preliminary Prospectus." The final prospectus
which will be filed with the Commission pursuant to Rule 424(b) (or any
successor applicable rule) of the Rules and Regulations and deemed to be a part
of such registration statement at the time of its effectiveness under the Act
pursuant to paragraph (b) of Rule 430A (or any successor applicable rule) of the
Rules and Regulations is hereinafter referred to as the "Prospectus". Such
registration statement, as amended at the date and the time as of which it or
its most recent post-effective amendment is declared effective by the Commission
(the "Effective
8
8
Time"), is hereinafter referred to as the "Registration Statement". Any
offering materials requested by the Remarketing Agent pursuant to the first
sentence of this Section 3(a), any registration statement filed with the
Commission pursuant to the second sentence of this Section 3(a), the
Registration Statement, the Prospectus, any Preliminary Prospectus and any
amendment or supplement to any of them are hereinafter referred to as the
"Offering Materials".
(b) The Company will provide the Remarketing Agent with such
certificates, opinions of counsel, accountants' letters and other support for
the information contained in any Offering Materials as the Remarketing Agent and
its counsel may reasonably request.
(c) If, at any time from the day 90 days prior to the
Submission Date to and including the Rate Reset Date, any event relating to or
affecting the Company, the Capital Securities (or, if a Distribution Event shall
have occurred, the Junior Subordinated Debt Securities) or any of the documents
described in any Offering Materials shall occur which might materially affect
the correctness or completeness of any statement of a material fact contained in
any Offering Materials, the Company will promptly notify the Remarketing Agent
in writing of the circumstances and details of such event, including as provided
in Section 3(e)(v).
(d) The Company will supply the Remarketing Agent, at no
expense to the Remarketing Agent, with as many copies as the Remarketing Agent
may request of any Offering Materials, including as provided in Section 3(e)(v),
and will amend the Offering Materials (and any documents that may be
incorporated by reference therein), including as provided in Section 3(e)(v) and
otherwise at the request of the Remarketing Agent, so that the Offering
Materials will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading.
(e) If a registration statement is filed with the Commission
pursuant to Section 3(a), the Company hereby agrees that it will:
(i) make such filing at least 90 days prior to the Submission
Date (such date of filing, the "Filing Date") and use its best efforts
to cause such registration statement (including any post-effective
amendment thereto) to become effective prior to the Submission Date;
9
9
(ii) prepare such registration statement in conformity with
the requirements of the Act and the Rules and Regulations;
(iii) prepare the Prospectus in a form approved by the
Remarketing Agent and file the Prospectus pursuant to Rule 424(b) (or
any successor applicable rule) under the Act prior to the Rate Reset
Date or, if applicable, such earlier time as may be required by Rule
430A(a)(3) (or any successor applicable rule) under the Act; make no
further amendment or any supplement to the Registration Statement or to
the Prospectus except as permitted herein; advise the Remarketing
Agent, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed and furnish the Remarketing Agent with copies thereof;
advise the Remarketing Agent, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
the Prospectus, of the suspension of the qualification of the Capital
Securities (or, if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities) for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and in the event of the issuance of any stop
order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or suspending any such
qualification, promptly use its best efforts to obtain its withdrawal;
(iv) furnish promptly to the Remarketing Agent and to counsel
for the Remarketing Agent a signed copy of the Registration Statement
as originally filed with the Commission, and each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith;
(v) deliver promptly to the Remarketing Agent such number of
the following documents as the Remarketing Agent shall reasonably
request: (1) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in
each case excluding exhibits) and (2) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus; and, if the
delivery of a prospectus is required at any time after the Effective
Time in connection with the offering or sale of the
10
10
Capital Securities (or, if a Distribution Event shall have occurred,
the Junior Subordinated Debt Securities) or any other securities
relating thereto and if at such time any events shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary to amend or supplement the Prospectus in order to
comply with the Act, notify the Remarketing Agent and, upon its
request, prepare and furnish without charge to the Remarketing Agent as
many copies as the Remarketing Agent may from time to time reasonably
request of an amended or supplemented Prospectus which will correct
such statement or omission or effect such compliance;
(vi) file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Act or requested by the Commission;
(vii) prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any
Prospectus pursuant to Rule 424 (or any applicable successor rule) of
the Rules and Regulations, furnish a copy thereof to the Remarketing
Agent and counsel for the Remarketing Agent and obtain the consent of
the Remarketing Agent to the filing;
(viii) as soon as practicable after the Effective Time, make
generally available to the Company's security holders and deliver to
the Remarketing Agent an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
(or any applicable successor section) of the Act and the Rules and
Regulations (including, at the option of the Company, Rule 158 (or any
applicable successor rule)).
(ix) promptly from time to time take such action as the
Remarketing Agent may request to qualify the Capital Securities (or, if
a Distribution Event shall have occurred, the Junior Subordinated Debt
Securities) for offering and sale under the securities laws of such
jurisdictions as the Remarketing Agent may request and to take all
steps necessary to comply with such laws so as to permit the
continuance of sales and dealings
11
11
therein in such jurisdictions for as long as may be necessary to
complete the distribution of Capital Securities (or, if a Distribution
Event shall have occurred, the Junior Subordinated Debt Securities);
PROVIDED, HOWEVER, that in connection therewith the Company will not be
required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not so
qualified.
4. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF
THE COMPANY. (a) The Company represents, warrants, covenants and agrees with
the Remarketing Agent as follows:
(i) the Company has full power and authority to enter into
this Agreement and will have full power and authority to enter into any
agreements which it may enter into in connection with the transactions
contemplated by any Offering Materials; this Agreement and the
transactions contemplated hereby have been, and each other such
agreement and the transactions contemplated thereby will be, duly
authorized, executed and delivered by the Company; and this Agreement
is, and each such other agreement will be at the Rate Reset Date, a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms;
(ii) the consummation of the transactions contemplated herein
do not now, and the consummation of the transactions contemplated in
any other agreement entered into by the Company in connection with the
transactions contemplated by any Offering Materials will not, at the
Rate Reset Date, conflict with or constitute a breach of, or a default
under, or result in the creation or imposition of any lien, charge or
other encumbrance upon any property or assets of the Trust, the Company
or any of the Company's subsidiaries pursuant to any contract,
indenture, declaration of trust, deed of trust, mortgage, loan
agreement, note, lease or other instrument or agreement to which the
Trust, the Company or any of its subsidiaries is or will be a party or
by which it or any of them may be bound, or to which any of the
property or assets of any of them is or will be subject, nor will such
actions result in any violation of the provisions of the by-laws of the
Company or any of its subsidiaries or any statute (including the Act,
the Exchange Act and state securities laws) or any order, rule or
regulation of any court or governmental agency or body (including the
Commission) which has or will have jurisdiction over the Company or any
of its subsidiaries or any of their
12
12
material property or assets except for a conflict, breach, default,
lien, charge or encumbrance which could not reasonably be expected to
have a material adverse effect on the consummation of the transactions
contemplated herein or therein;
(iii) all required consents, rulings and approvals of
governmental authorities (other than "Blue Sky" authorities) required
in connection with the execution and delivery by the Company of this
Agreement and any agreement entered into by the Company in connection
with the transactions contemplated by any Offering Materials, and the
performance by the Company of its obligations hereunder and thereunder,
have been obtained and are in full force and effect or, at the Rate
Reset Date, will have been obtained and be in full force and effect;
(iv) except as disclosed in the Offering Materials, neither
the Company nor any of its subsidiaries is or, at the Rate Reset Date,
will be (i) in violation of its by-laws, (ii) in default in any
respect, and no event has occurred or will have occurred which, with
notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition
contained in any contract, indenture, declaration of trust, deed of
trust, mortgage, loan agreement, note, lease or other instrument or
agreement to which it is or will be bound or to which any of its
properties or assets is or will be subject or (iii) in violation of any
law, ordinance, governmental rule, regulation or court decree to which
it or its property or assets may be subject;
(v) the Offering Materials, including as provided in Section
4(x), will not, at the Rate Reset Date, contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
PROVIDED that no representation or warranty is made as to information
contained in or omitted from the Offering Materials in reliance upon
and in conformity with written information furnished to the Company by
the Remarketing Agent specifically for inclusion therein;
(vi) the financial statements of the Company contained (or
incorporated by reference) in the Offering Materials will present
fairly the financial position of the Company as of the dates indicated,
and the results of operations and changes in financial position of the
Company for the periods covered, in
13
13
conformity with generally accepted accounting principles applied on a
consistent basis, except as otherwise set forth therein;
(vii) after the date of the most recent financial statements
of the Company contained (or incorporated by reference) in the Offering
Materials, there will not have been any material adverse change in the
condition (financial or other), stockholders' equity, results of
operations or business of the Company and its subsidiaries, except as
disclosed in the Offering Materials;
(viii) except as disclosed in the Offering Materials, there
will be no legal or governmental proceedings pending at the Rate Reset
Date to which the Company or any of its subsidiaries is a party or of
which any material property or assets of the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, might have a material adverse
effect on the condition (financial or other), stockholders' equity,
results of operations or business of the Company and its subsidiaries,
taken as a whole;
(ix) any description of a contract, indenture, declaration of
trust, deed of trust, mortgage, loan agreement, note, lease or other
instrument or agreement contained in the Offering Materials will be, at
the Rate Reset Date, true, complete and correct; and
(x) If a registration statement is filed pursuant to Section
3(a), the Registration Statement at the Effective Time will conform to
the requirements of the Act and the Rules and Regulations and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as of the Rate
Reset Date, will conform to the requirements of the Act and the Rules
and Regulations and will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED that no representation or warranty
is made as to information contained in or omitted from any Preliminary
Prospectus, the Registration Statement or the Prospectus in reliance
upon and in conformity with written information furnished to the
Company by the Remarketing Agent specifically for inclusion therein.
14
14
5. TERM OF ; RESIGNATION OF REMARKETING
AGENT; SURVIVAL. This Agreement shall become effective upon execution and
delivery by the Remarketing Agent and the Company and shall continue in full
force and effect to and including the Rate Reset Date. The Remarketing Agent may
resign on not less than 15 calendar days' written notice.
6. PAYMENT OF FEES AND EXPENSES. In consideration of the
services to be performed by the Remarketing Agent under this Agreement, the
Company agrees to pay to the Remarketing Agent, if there are Sufficient Clearing
Bids in the Rate Reset Auction, a fee equal to .50% of the Liquidation Amount of
the Capital Securities (or, if a Distribution Event shall have occurred, .50% of
the principal amount of the Junior Subordinated Debt Securities) outstanding on
the Rate Reset Pricing Date.
In addition, the Company will reimburse the Remarketing Agent
upon demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by it in connection with
the performance of its obligations enumerated in Section 2.
Whether or not there are Sufficient Clearing Bids in the Rate
Reset Auction, the Company agrees to pay (a) the costs incident to the
preparation, printing and distribution of the Offering Materials; (b) the
registration fee and other costs of filing under the Act any Registration
Statement, any Prospectus and any exhibits or amendments thereto; (c) the fees
and expenses of qualifying the Capital Securities (or, if a Distribution Event
shall have occurred, the Junior Subordinated Debt Securities) under the
securities laws of the several jurisdictions as provided in Section 3(e)(ix) and
of preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Remarketing Agent); (d) the fees and
disbursements of counsel for the Remarketing Agent in connection with its review
of the Offering Materials; and (e) the fees and expenses of the Auction Agent,
the Property Trustee and the Debenture Trustee (including any fees and expenses
of their respective counsel) in connection with the transactions contemplated
hereby, including the Rate Reset Auction.
7. CONDITIONS. The obligations of the Remarketing Agent
hereunder will be subject to the accuracy, when made and on the Rate Reset Date,
as applicable, of the representations and warranties of the Company, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
15
15
(i) the Offering Materials at the Rate Reset Date will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED that this condition to the
Remarketing Agent's obligations hereunder will not apply with respect
to information contained in or omitted from the Offering Materials in
reliance upon and in conformity with written information furnished to
the Company by the Remarketing Agent specifically for inclusion
therein;
(ii) to the extent that any Offering Materials have been
provided to the Remarketing Agent pursuant to Section 3, the
Remarketing Agent will have received such certificates, opinions of
counsel, accountants' letters and other support for the information
contained in such Offering Materials as the Remarketing Agent or its
counsel shall have requested pursuant to Section 3(b) with effect, if
requested by the Remarketing Agent, on and as of the Rate Reset Date;
(iii) on the Rate Reset Date (a) trading generally shall not
have been suspended or materially limited on or by, as the case may be,
the New York Stock Exchange, (b) trading of any notes or other
securities of or guaranteed by the Company shall not have been
suspended on any exchange or in any over-the-counter market, (c) a
general moratorium on commercial banking activities in New York shall
not have been declared by either federal or New York State authorities
or (d) there shall not have occurred any outbreak or escalation of
hostilities or any calamity or crisis that, in the judgment of the
Remarketing Agent, is material and adverse and which, in the judgment
of the Remarketing Agent, makes it impracticable for it to perform any
of its obligations enumerated in Section 2;
(iv) subsequent to the day ninety days prior to the Submission
Date or, if earlier, the Filing Date, there will not have been any
decrease in the rating of any of the Company's debt securities by a
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) (or any applicable successor rule) under the
Act) or any notice given of any intended or potential decrease in any
such rating or of a possible change in any such rating that does not
indicate the direction of the possible change;
(v) no event will have occurred which would permit a Capital
Event, '40 Act Event or Tax Event (each as defined in the Indenture) to
become effective, except as disclosed in the Offering Materials; and
16
16
(vi) any registration statement required to be filed with the
Commission pursuant to Section 3(a) will have been so filed and become
effective on or prior to the respective dates specified in Section
3(a); the Prospectus will have been filed with the Commission pursuant
to Rule 424(b) (or any applicable successor rule) within the applicable
time period prescribed for such filing by the Rules and Regulations and
prior to the Rate Reset Date; no stop order suspending the
effectiveness of the Registration Statement or any part thereof will
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with;
and no order suspending the qualification of the Capital Securities
(or, if a Distribution Event shall have occurred, the Junior
Subordinated Debt Securities) under any applicable state securities or
"Blue Sky" laws shall have been issued, and no proceeding for that
purpose shall have been initiated or threatened.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees
to indemnify and hold harmless the Remarketing Agent, the directors, officers,
employees and agents of the Remarketing Agent and each person who controls the
Remarketing Agent within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Offering Materials, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made in any Offering Materials, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by the
17
17
Remarketing Agent specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) The Remarketing Agent agrees to indemnify and hold
harmless each of the Company, its directors and officers, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to the
Remarketing Agent, but only with reference to written information relating to
the Remarketing Agent furnished to the Company by or on behalf of the
Remarketing Agent specifically for inclusion in any Offering Materials (or in
any amendment or supplement thereto). This indemnity agreement will be in
addition to any liability which the Remarketing Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ one separate counsel (and, in addition, one local counsel in
any relevant jurisdiction for an indemnified party), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available to it
18
18
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Remarketing Agent agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and the Remarketing
Agent may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company and by the Remarketing Agent from the
actions contemplated hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Remarketing Agent shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Remarketing Agent in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the aggregate Liquidation Amount of the Capital Securities (or, if a
Distribution Event shall have occurred, the aggregate principal amount of the
Junior Subordinated Debt Securities) outstanding after the Rate Reset Date, less
the amount of the remarketing fee payable to the Remarketing Agent pursuant to
the first paragraph of Section 6, and benefits received by the Remarketing Agent
shall be deemed to be equal to the remarketing fee received by the Remarketing
Agent pursuant to the first paragraph of Section 6. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company, on the one hand, or the
Remarketing Agent, on the other. The Company and the
19
19
Remarketing Agent agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls the Remarketing Agent within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of the Remarketing
Agent shall have the same rights to contribution as the Remarketing Agent, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act and each officer and director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
9. NOTICES. All notices under this Agreement
shall be in writing and mailed, delivered or transmitted to:
The Remarketing Agent:
UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Company:
The address set forth on the first page of
this Agreement.
Attention of Corporate Treasury
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may, by notice given under this Agreement, designate
another address to which notices hereunder shall be directed.
10. MISCELLANEOUS. (a) The rights and obligations of the
respective parties hereto may not be assigned or delegated to any other person
without the consent of the other party hereto. This Agreement will inure to the
benefit of and be binding upon the Company and
20
20
the Remarketing Agent and their respective successors and assigns, and, except
as expressly set forth herein, will not confer any rights upon any other person,
partnership, association or corporation.
(b) All of the representations, warranties, covenants and
agreements (including Sections 6, 8 and 10(f) of this Agreement) of the Company
and the Remarketing Agent in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Remarketing Agent or the Company or (ii) termination or cancelation of this
Agreement.
(c) Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section
headings are not a part of this Agreement and will not be used in the
interpretation of any provisions of this Agreement.
21
21
(d) If any provision of this Agreement shall be held or deemed
to be or shall, in fact, be invalid, inoperative or unenforceable as applied in
any particular case in any jurisdiction or jurisdictions, or in all
jurisdictions, because it conflicts with any provisions of any constitution,
statute, rule of public policy or any other reason, such circumstances shall not
have the effect of rendering the provision in question invalid, inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions of this Agreement invalid, inoperative or unenforceable
to any extent whatever.
(e) This Agreement may be executed in several counterparts
each of which shall be regarded as an original and all of which shall constitute
one and the same document.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
UBS SECURITIES LLC,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Title: Managing Director
Accepted and agreed to as of
the date first above written:
NATIONAL CITY CORPORATION,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Executive Vice President
and Senior Investment
Officer